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The Reform and Improvement of the Criminal Retrial Procedure

Author: ZhuTianHui
Tutor: MoDanYi
School: Southwest University of Political Science
Course: Procedural Law
Keywords: Retrial Procedure Bis in idem Substantive Truth Not conducive sentenced
CLC: D925.2
Type: Master's thesis
Year: 2009
Downloads: 130
Quote: 1
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Abstract


Criminal retrial procedure is a very important relief program to achieve substantive justice and program stability, Justice and the effectiveness of the proceedings as well as national power of punishment conflict with the value of the protection of human rights. Examine the legislative status quo of China's criminal retrial procedure the retrial procedure many defects and deficiencies, on the one hand, retrial abuse v. serious entity that justice can not be achieved, and low public satisfaction; On the other hand, frequent startup so that judicial prestige then swing no retrial deposit, seriously affect the value of judicial finality. These problems have long plagued the retrial system's controversial theorists, scholars a matter of opinion, and put forward their ideas, and there is no lack of theoretical support and practical support. Abroad and related areas are part of the mature and advanced criminal retrial system theory as our transformation the criminal retrial program provides a useful reference, it is worth our thinking and learning. The text of which is the theoretical basis of the criminal retrial rely on the status of criminal retrial system, criminal retrial system of classification reform and perfect for the end-result of criminal retrial system initial exploration, want to be able to progress retrial system presented mite to force. This paper is divided into five parts: The first part is the introduction of the retrial procedure. Specified retrial concepts and features, as well as the value of conflict involved, then the system of common law and civil law retrial were a rough introduction. The second part describes the status quo of China's retrial procedure. The part of the first legislative level describes our the criminal retrial program retrial guidance ideas and procedures to construct the current situation, and then analyzed the supervision of the state organs, status and complaint status. The third part discusses the judgment of the scholars on China retrial procedure. Four angles of the Abolition of the criticism from the guiding ideology of the mechanism will be activated criticism retrial reason to criticize and retrial theoretical circles of retrial system. That scholars believe that China's criminal retrial procedure there are many problems in more than a few links, the reform the retrial program has become the academic consensus. The fourth part is the focus of this article, the thinking of the retrial the status quo and the scholars judge. I start with the point of view of the litigation model analysis of the Two Legal proceedings mode of their retrial decisive impact that the relatively sound condition in the rule of law, under the terms of reference of the civil law trust mode determines bis in idem applies with the current pattern of the retrial common law countries Confrontation mode is a procedural fairness to the pursuit of and reflect substantive justice model, prohibiting double jeopardy applies. The necessity of retrial mode of thinking and analysis that scholars judge is not fundamentally solve the problem. Then put forward China's retrial pattern is determined by the current litigation model point of view, and then discusses the necessity of a retrial is in the current litigation mode, China's retrial before the formalization of the fact that the trial of the program we did not reach the continental law achieve substantive justice goals not reached in common law procedural fairness requirements reflect substantive justice, therefore, concluded that: we can not strictly enforce the \principles. The fifth part is the key, respectively, from the favor and not conducive sentenced two paths discussed Retrial System in China's reform and improve the concrete ideas. Insist on taking into account the principle of of referee impartiality and judicial stability and all-round social intervention allowed for a retrial in favor of the sentenced person should start the program on the grounds, 'the trial stage, respectively, to be lenient legislation; retrial not conducive sentenced should establish a limited bis in idem principle, in the start-up procedures, grounds', each stage of the trial should be strict legislation to prevent that is not conducive to a retrial sentenced arbitrarily instituted to protect the legitimate rights and interests of the people sentenced.

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CLC: > Political, legal > Legal > Chinese law > Procedural Law > Code of Criminal Procedure
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